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Baker v. Keck

United States District Court, D. Kansas

July 17, 2017

RONALD BAKER, et al., Plaintiffs,
v.
TIM KECK, Interim Secretary of Kansas Department for Aging and Disability Services, and MIKE DIXON, Clinical Program Director of the Kansas Sexual Predator Treatment Program, Defendants.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE.

         The plaintiffs are more than twenty individuals who have been involuntarily committed to the custody of the State of Kansas pursuant to the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. § 59-29a01, et seq. Their First Amended Complaint alleges that the defendants are violating their right to due process under the Fourteenth Amendment by failing to provide minimally adequate treatment, by denying less restrictive confinement alternatives, and by subjecting them to conditions that amount to punishment. Dkt. 62. Plaintiffs seek to bring the claims on behalf of a class of similarly situated individuals. The matter is now before the court on defendants' motion to dismiss the action. Dkt. 76. For the reasons stated herein, the court finds the motion to dismiss should be granted.[1]

         I. Summary of complaint.

         The KSVPA created a civil commitment scheme for the long-term control, care, and treatment of sexual predators. When an individual meets the criteria of a sexually violent predator, the Attorney General may file a petition for commitment, followed by an evaluation of the individual at a state hospital. A civil trial may then be held to determine if the individual suffers from a mental abnormality or personality disorder that, if not treated, will make the person likely to engage in repeated acts of sexual violence. If the judge or jury finds beyond a reasonable doubt that the person presents such a risk, the individual is committed to the Sexual Predators Treatment Program (SPTP). Dkt. 62 at 6-7.

         The SPTP is a seven-phase program. The first five phases are provided at Larned State Hospital (LSH). The last two phases, known as reintegration, are provided at other state hospitals. Residents who complete all seven phases are conditionally released from the program and into the community, where they are monitored by district courts for at least five years. After that, an individual is eligible for final discharge by a court.

         Plaintiffs allege that as of December 2014, there were 243 individuals in the SPTP, but only three individuals have successfully completed the program, while 30 individuals have died during confinement. Plaintiffs claim there are a number of “systemic obstacles and impediments” to completion of the program. These include detainees receiving significantly less treatment than the 31.5 hours per week previously claimed by the State, with some plaintiffs reporting they only receive three hours of group therapy per week and one hour of individual therapy per quarter. Plaintiffs claim group therapy at LSH is overcrowded and has insufficient opportunities for improvement. They claim treatment-plan reviews take place every 90 days rather the 30 days promised in the program's Resident Handbook. They allege reviews are perfunctory and fail to provide accurate feedback, goals, and prognoses.

         Plaintiffs contend that as a result of high turnover in staff, they have to continually start over with new therapists, causing delays in progress. They claim individuals who are eligible to transition to phases six and seven are prevented from doing so by a lack of available beds in reintegration facilities. They claim individuals who advance to the reintegration phases “are destined to fail because they have received inadequate treatment and instruction.” They allege that individuals “are regularly demoted from one phase of the program to the preceding phase, arbitrarily.” Additionally, they claim the SPTP fails to keep adequate records about treatment and progression and is therefore unable to effectively manage the program. Plaintiffs allege that during a required annual review to determine the risk of reoffending, the SPTP uses a test that was not designed to assess that risk.

         Plaintiffs allege that defendants run LSH like a prison. Detainees who violate rules are allegedly locked in their rooms, injected with tranquilizers, placed in restraints, or placed in solitary confinement. Policies restrict possession of computers, furniture, bedding, religious items, recording devices, and craft items. Detainees are prohibited from moving freely around LHS, are subject to random searches of their cells, have their phone calls monitored, and are not allowed to have cell phones or use the internet “even though such use would be highly regulated and not subject to abuse.” Plaintiffs allege that about 40% of detainees in the SPTP have given up and stopped participating because “they will never receive adequate treatment and … have no realistic possibility of progressing through” the program.

         Count I alleges that, contrary to due process, defendants' “failure to provide adequate treatment … has resulted in [plaintiffs'] indefinite confinement and substantially contributes to conditions of confinement so restrictive and indefinite as to be punitive.” It alleges defendant have “failed to offer any minimally adequate treatment” and have “failed to exercise professional judgment” in setting and administering policies and treatment. It asserts that the treatment program “is so arbitrary and egregious as to shock the conscience.”

         Count II alleges that, contrary to due process, defendants ignore less restrictive facility and treatment options, impose unjustified and unreasonable means of confinement, and subject plaintiffs to conditions of confinement bearing no rational relationship to the legitimate objectives of the SPTP. It alleges that the restrictions on plaintiffs' liberty interests have a punitive effect and constitute inhumane treatment that shocks the conscience.

         Count III similarly claims that defendants are violating plaintiffs' due process rights by adopting policies and operating LSH as a prison. Plaintiffs allege that detainees are effectively serving life sentences with “no legitimate therapeutic purpose” to their confinement. Count IV makes clear that plaintiffs are asserting an “as applied” challenge to administration of the SPTP.

         II. Motion to Dismiss (Dkt. 76).

         Defendants argue plaintiffs fail to allege facts showing they receive treatment so inadequate that it constitutes a substantial departure from accepted professional judgment or shocks the conscience. Defendants argue the allegations show plaintiffs are in fact receiving treatment, although not at a level they would like, and that their allegations fail to overcome a presumption of validity attaching to the professional judgment of treatment providers. Dkt. 77 at 8-9 (citing Burch v. Jordan, No. 07-3236, 2010 WL 5391569 (D. Kan. Dec. 22, 2010), aff'd, 444 F.App'x 236 (10th Cir. 2011)). Defendants point out that a recent Eight Circuit case, Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017), rejected a similar challenge to Minnesota's treatment program, despite the fact Minnesota had no annual review of detainees and none of the 714 individuals committed since 1994 had successfully completed that program. Defendants contend there are no allegations of egregious, malicious, or sadistic conduct to satisfy the “shock the conscience” standard for a due procession violation.

         Defendants also argue the complaint fails to show a violation of the right to “reasonably nonrestrictive confinement conditions” recognized in Youngberg v. Romeo, 457 U.S. 307 (1982). Defendants point out the State does not have to provide the best or least restrictive means available, and that a state has wide latitude in developing treatment programs for sexually violent predators. Dkt. 77 at 11 (citing Kansas v. Hendricks, 521 U.S. 346 (1997)). Defendants again argue there are no facts showing a departure from accepted professional judgment in ...


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